Filed 12/14/21 In re M.C. CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re M.C. et al., Persons Coming 

Under the Juvenile Court Law.

 B311839

 (Los Angeles County

 Super. Ct. No. CK98742A-C)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

A.E. et al.,

Defendants and Appellants.

APPEAL from orders of the Superior Court of Los Angeles 

County, Stephen C. Marpet, Judge. Affirmed.

Gina Zaragoza, under appointment by the Court of Appeal, 

for Defendant and Appellant A.E. 

Elizabeth Klippi, under appointment by the Court of 

Appeal, for Defendant and Appellant A.J.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Jane Eunjung Kwon, Principal 

Deputy County Counsel, for Plaintiff and Respondent.
2

Mother A.E. and father A.J. appeal from orders 

terminating parental rights to their respective children. Mother 

appeals from the juvenile court’s order as to children M.C. (born 

2013), V.C. (born 2014), and D.J. (born 2016). A.J. is the father of 

only one of the three children, D.J., and appeals the termination 

of his parental rights as to D.J. 

At the selection and implementation hearing, mother’s 

counsel asked the juvenile court to hold a contested hearing to 

allow her to prove the beneficial parent-child relationship

exception to the termination of parental rights. At the contested 

hearing, mother failed to appear but counsel submitted a letter 

mother had written. Counsel failed to present any other evidence 

or argument. The juvenile court found the parental benefit 

exception did not apply. Mother contends the juvenile court’s 

failure to articulate reasons for its finding is reversible error 

because it is unclear whether the court applied the correct legal 

standard. We find no error.

Father adopts mother’s arguments on appeal, making none

of his own. Father’s appeal fails for the same reasons as does 

mother’s. We affirm the challenged orders. 

FACTUAL AND PROCEDURAL BACKGROUND1

On May 31, 2016, the Los Angeles County Department of 

Children and Family Services (DCFS) filed a petition pursuant to 

Welfare and Institutions Code section 300, subdivisions (a), 

1 Due to the length of the dependency proceedings and the 

single issue raised, we provide only an abbreviated procedural 

and factual background.
3

(b)(1), and (j).

2 The juvenile court sustained the subdivision (a) 

and (b)(1) counts, finding mother and father engaged in domestic 

violence in the children’s presence, were current abusers of 

marijuana, and mother failed to protect the children from father’s 

substance abuse. It dismissed the subdivision (j) count that dealt 

with claims of sibling abuse or neglect.

At the disposition hearing, the juvenile court removed D.J.

from father and all three children from mother.

3 The court 

ordered mother and father to submit to random drug testing and 

individual counseling as well as complete domestic violence 

classes and parent education classes. At the six-month and 

twelve-month review hearings, the juvenile court found mother

and father were generally in compliance with the case plan. 

During this time, mother consistently visited the children and 

the monitors reported no problems with her visits. By 

September 13, 2017, one month after the twelve-month review 

hearing, mother had regained custody of the children and father

was granted unmonitored visits with D.J. The juvenile court 

noted mother’s “outstanding progress” in its order.

Two weeks later, mother was arrested for driving under the 

influence of alcohol while the children were in the car.4 She 

admitted to the children’s social worker that she drank “two 

small glasses of wine” because she “was feeling overwhelmed by 

2 All further undesignated statutory references are to the 

Welfare and Institutions Code.

3 M.C. and V.C.’s father died prior to the initiation of these 

proceedings. 

4 M.C. and V.C.’s paternal grandmother retrieved the 

children after mother was arrested. 
4

everything, the case, the children . . . .” The arresting officer 

reported mother indicated at the scene she had one glass of wine 

but unintentionally disclosed at the hospital that she had one 

bottle of wine. Mother’s blood alcohol concentration at the scene 

was .242 and .244, which is slightly over three times the legal 

limit, and .20 at the hospital.

The juvenile court authorized the children’s removal from 

mother’s custody upon DCFS’s petition. The children were placed 

with M.C. and V.C.’s paternal great-aunt. (D.J. was not related 

by blood to her half siblings’ paternal relatives.) DCFS filed a

subsequent petition pursuant to section 342 alleging additional 

jurisdictional grounds over the children under section 300,

subdivision (b)(1). The section 342 petition alleged mother’s 

substance and alcohol abuse rendered her incapable of providing 

regular care for her young children, citing the drunk driving 

incident.

1. Termination of Reunification Services

On February 23, 2018, the juvenile court conducted the 18-

month review hearing as well as the adjudication hearing on the 

section 342 petition. It terminated reunification services for 

mother and father. Neither parent objected to this ruling. The 

court also sustained the section 342 allegations against mother

and changed father’s visitation from unmonitored to monitored

due to an altercation between father and mother during one visit. 

The court initially set a 366.26 permanency plan hearing for 

June 22, 2018, which was continued several times to allow DCFS 

to assess and search for viable adoptive parents. 

Over the next 20 months, DCFS unsuccessfully explored 

adoption by maternal and paternal relatives as the permanent 

plan for the children. In April 2018, the children were placed 
5

with foster mother C.S., with whom they had previously lived. In 

October 2019, DCFS abandoned its efforts to have the children 

adopted by relatives and recommended legal guardianship with 

C.S. In August 2020, C.S. committed to adopting the children

despite initially preferring legal guardianship. 

After reunification services were terminated, mother 

continued to visit the children consistently. In September 2019, 

she began regular visits with the children at a visitation center 

near C.S.’s home. The monitors reported mother was nurturing

and engaged with the children during her weekly visits. C.S. also 

reported mother was consistent with her weekly visits. On the 

other hand, DCFS reported that during this time father’s visits 

with D.J. were inconsistent. The record shows he only visited her 

once. 

Mother transitioned to virtual visits with the children in 

2020 due to restrictions imposed by the COVID-19 pandemic. 

C.S. reported the children, aged seven, six, and four, sometimes 

were not interested in speaking to mother but generally enjoyed

her virtual visits. Mother resumed in-person visits on June 21, 

2020, with a DCFS monitor and COVID-safety measures in place.

Mother consistently visited the children every other week during 

this time. 

On November 12, 2020, mother filed a petition under

section 388, seeking custody of the children or reinstatement of 

reunification services and unmonitored visitation “to maintain 

important familial ties.” In support, mother stated she was 

focused on her sobriety and presented evidence she previously 

completed alcohol and drug programs in 2017 and 2018. She 

asserted she was no longer involved with father, had completed 

domestic violence and parenting classes in 2017, and was 
6

currently enrolled in individual therapy and attending AA 

meetings. Copies of various completion certificates were 

attached. She stated she had a close and bonded relationship 

with each child, she visited them weekly, and each child 

expressed that she missed mother and wanted to live with her.

The juvenile court summarily denied the request, finding it was 

not in the children’s best interest and there was no change of 

circumstance. 

Mother had three virtual visits in November and December 

2020, but no in-person or virtual visits after December 10, 2020. 

Mother explained to the court she missed two scheduled visits 

because she was sick and had to work. 

2. Termination of Parental Rights

On February 17, 2021, mother appeared with counsel at the 

section 366.26 selection and implementation hearing via WebEx. 

Counsel for mother requested the court order a bonding study 

and set a contested hearing on the issue of adoptability. Counsel 

stated, “Mother here is asking to set this matter for contest and 

she and/or the children will testify as to the details of their 

relationship and their bond which has been previously 

documented by the county in the October 2020 RPP report at 

pages 12 and 13.” Mother’s counsel further requested DCFS 

interview the children regarding their desire for continued 

visitation with mother to eliminate the need to call them to 

testify. Father joined mother’s request for a contested hearing. 

The juvenile court denied the request for a bonding study but set 

the contested hearing for March 26, 2021. Mother does not

challenge on appeal the court’s denial of the request for a bonding 

study. 
7

On March 11, 2021, DCFS interviewed the children to 

discuss their wishes regarding adoption and visitation with 

mother. The children’s social worker emphasized to the children

the importance of knowing their wishes so they can be conveyed 

to the court. All three children were enthusiastic about adoption 

by C.S. 

Each child reported she had issues with their contacts with 

mother. Eight-year-old M.C. reported she felt nervous during her 

calls with mother because “she might scream at me or be mad 

[C.S.] is going to adopt me.” She observed her sisters behaved

badly after mother’s calls, including screaming and hitting one 

another. She told the social worker, after the adoption, she 

wanted to speak with mother on the phone “but no FaceTime or 

[in-person] visits.”

V.C., who was almost seven years old, admitted she 

sometimes did not talk with mother because she was distracted. 

She described feeling “happy, angry, scared, nervous” during her 

calls and chats with mother because mother told her C.S. was not 

her real family, which made V.C. mad and angry. When asked 

what kind of contact she wanted with mother after the adoption,

V.C. said, “I don’t never want to see my mom. I can see her in my 

dreams.” She elaborated she wanted to talk to mother but only if 

she cannot see her face. 

Five-year-old D.J. reported she sometimes liked speaking 

with mother and sometimes did not like it. She explained, “When 

I don’t talk to her she screams at me.” She also stated, “I never 

talk to her. I never like talking to her.” D.J. initially indicated 

she did not want any contact with mother after the adoption but 

upon further questioning, said she would be willing to speak to 

mother “only with voice.” 
8

At the contested section 366.26 hearing, neither mother nor 

father appeared. At counsel’s request, the court admitted a letter 

that mother had written:

“I would like for the court to know that I love my daughters 

with all of my heart and I take accountability for the terrible 

mistakes I made. I started working very hard to better myself 

and my life to be able to make better choices for myself and my 

children. But no matter how hard I tried and how much I 

changed my life it was never enough in the eyes of the system, a 

system that did not serve its justice by tearing me and my girls 

apart. I just as [sic] they don’t deserve this, I am not a bad 

mother, I am not a bad person, yes I made bad choices but that 

does not define me or who I have become today. An independent 

woman who works hard, has morals, is educated, and is not 

afraid of whatever life has to throw in her path. I deserve to have 

my children just like they deserve to have me. Please don’t 

overlook my case and give me the opportunity to be in their life. I 

will continue to do whatever it takes to prove that I am not the 

person that I’m portrayed to be. Please don’t take the easy route 

and give my daughters up for adoption.” 

The court stated it had read and considered mother’s letter. 

Father’s counsel did not introduce any evidence or make any 

argument before the court’s ruling. The court found the parental 

benefit exception did not apply. The court also found by clear and 

convincing evidence the children would be adopted. It 

terminated parental rights. Counsel for mother and father

objected to the termination of their parental rights for the record. 

Mother’s counsel argued mother had made progress toward her 

case plan and asked the court to elect any other permanent plan 

besides adoption. The court did not change its findings or orders. 
9

Mother and father timely appealed. 

DISCUSSION

Mother’s – and by extension, father’s – sole contention on 

appeal is that the juvenile court erred when it found the parental 

benefit exception did not apply without articulating its reasons 

for the finding. According to mother, it is unclear which legal 

standard the juvenile court applied to reach its conclusion and

she urges us to remand the matter so the court may apply the 

standard recently set forth by the California Supreme Court in In 

re Caden C., supra, 11 Cal.5th 614. 

Before we reach mother’s contention, we first address 

DCFS’s assertion that she has forfeited her claim by failing to 

raise the parental benefit exception below. This argument is 

meritless. The record discloses mother’s counsel requested a 

contested hearing at the February 17, 2021 selection and 

implementation hearing to allow mother to demonstrate the 

parental benefit exception and avoid the termination of her 

parental rights. The juvenile court granted this request and set 

the contested hearing for March 26, 2021. 

As to the merits of her claim, mother relies on section 

366.26, subdivision (b) and In re Bernadette C. (1982) 

127 Cal.App.3d 618, 625 (Bernadette C.), to argue the juvenile 

court was required to articulate its reasons for finding the 

parental benefit exception did not apply. 

First of all, Bernadette C. has nothing to do with the

parental benefit exception or termination of parental rights. It 

deals with the appropriate burden of proof at a jurisdiction 

(preponderance of the evidence) and disposition (clear and 

convincing evidence) hearing. (127 Cal.App.3d at pp. 624–625.) 

The court observed: “ ‘The question of need to articulate the 
10

standard of proof employed by a trial court has recently been 

addressed by our Supreme Court. In essence it held that where a 

new standard of proof recently has been announced, or where the 

issue of the applicable standard is unclear, articulation is 

required. [Citations.] On the other hand, where the issue is well 

settled, it is presumed that the trial judge applied the 

appropriate standard and no articulation is required. [Citation.]’

[Citation.]” (127 Cal.App.3d at p. 625.) Bernadette C. is nearly 

40 years old and its “recent articulation theory” has no apparent 

bearing on the current appeal where the standard of proof is well 

settled. 

We start with the applicable statute. Section 366.26, 

subdivision (b) specifies that the juvenile court “shall review the 

[applicable DCFS] report . . . , shall indicate that the court has 

read and considered it, shall receive other evidence that the 

parties may present, and then shall make findings and orders” 

regarding the court’s selection of a permanent plan for the

dependent child. Although the “clear and convincing standard” is 

to be applied in determining whether the child is likely to be 

adopted, even on that issue the statute does not require the 

juvenile court to articulate the standard of proof. As for the 

parental benefit exception to adoption in which the parent must 

prove the exception by a preponderance of the evidence (In re 

Valerie A. (2007) 152 Cal.App.4th 987, 1007 (Valerie A.), the court 

is not required to make express findings unless it finds the 

exception applies and adoption no longer is the permanent plan.

(In re Jesse B. (1992) 8 Cal.App.4th 845, 851.) “If the court finds 

that termination of parental rights would be detrimental to the 

child pursuant to clause (i), (ii), (iii), (iv), (v), or (vi), it shall state 

its reasons in writing or on the record.” (§ 366.26, subd. 
11

(c)(1)(D).) When the juvenile court finds, instead, that the 

parental benefit exception does not apply and adoption remains 

the permanent plan (as was the case here), no express findings 

are required. 

“It is apparent from the statutory provisions that the 

Legislature demands an express finding on the matter of 

detriment only when the juvenile court determines detriment 

exists and relies upon it to refuse to enter an otherwise proper 

termination order. [¶] . . . [¶] Otherwise, when the court issues a 

termination order the appellate court will assume, in the absence 

of a contrary indication in the record, that the juvenile court 

considered the question of detriment and found none of the four 

statutory conditions had been established. In other words, we 

will imply, from the entry of a termination order, a negative 

finding on the question of detriment.” (In re Jesse B., supra,

8 Cal.App.4th at p. 851.) As for the burden of proof, appellate 

courts have long applied the preponderance of the evidence 

standard to cases involving exceptions to the termination of 

parental rights. (See Valerie A., supra, 152 Cal.App.4th at 

p. 1007; Seiser & Kumli, Cal. Juvenile Courts Prac. & Proc. 

(2021) § 2.171[5][b][ii][A].)

Mother implies Caden C., supra, 11 Cal.5th at p. 636, 

established a new standard to evaluate the statutory exceptions 

to adoption, thus requiring an articulation of reasons for the 

finding. Mother is mistaken. Caden C. used the preponderance 

of the evidence standard and did not set forth a new standard of 

proof. (Ibid.) Given these authorities, the juvenile court did not 

err when it failed to articulate reasons for its finding the parental 

benefit exception did not apply. There is also nothing in the 

record that suggests the juvenile court failed to use the 
12

preponderance of the evidence standard in evaluating mother’s 

claim of parental-benefit exception. 

Even if the juvenile court was required by In re Bernadette

C. to articulate its reasoning because the criteria used to evaluate 

the parental benefit exception was unclear prior to Caden C., any 

error was harmless because mother failed to meet her burden of 

proof. In Caden C., the Supreme Court identified “three elements 

the parent must prove [by a preponderance of the evidence]to 

establish the [parental benefit] exception: (1) regular visitation 

and contact, and (2) a relationship, the continuation of which 

would benefit the child such that (3) the termination of parental 

rights would be detrimentalto the child.” (Caden C., supra,

11 Cal.5th at p. 631.)

Here, mother did not present sufficient evidence to satisfy 

her burden of proof as to the second element of a beneficial 

relationship. While her counsel indicated she and the children 

would testify regarding their relationship and bond, she failed to 

present any evidence of it. Counsel offered only a letter in which 

she stated she loved her children, acknowledged her mistakes, 

and described her efforts to improve. The letter said nothing 

about her relationship or bond with the children. By contrast, 

DCFS’s interviews with the children, which mother’s counsel

indicated the court could consider in lieu of their testimony, 

showed the children’s ambivalence towards visits and contact

with mother. Each indicated a desire for limited contact with 

mother after the adoption. 

By any standard, the evidence was insufficient to 

demonstrate the children had “a substantial, positive, emotional 

attachment to the parent.” (Caden C., supra, 11 Cal.5th at 

p. 636; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Given 
13

this, we need not address the remaining two elements identified 

in Caden C. In short, mother was not prejudiced by the court’s 

failure to state reasons for its finding that the parental benefit 

exception did not apply. (In re Vincent S. (2001) 92 Cal.App.4th 

1090, 1093; see Andrea L. v. Superior Court (1998) 

64 Cal.App.4th 1377, 1387 [refusal to reverse for a contested 

hearing because it was an idle act and no prejudice arose from 

error].)

DISPOSITION

The orders terminating mother’s and father’s parental 

rights are affirmed.

RUBIN, P. J.

WE CONCUR:

MOOR, J.

KIM, J.